by John W. Whitehead, Rutherford Institute:
“When the President does it, that means that it is not illegal.”—Richard Nixon
Who pays the price for the dissolution of the constitutional covenant that holds the government and its agents accountable to the will of the people?
We all do.
This ill-advised decision by President Trump to circumvent the Constitution’s system of checks and balances by declaring a national emergency in order to build a border wall constitutes yet another expansion of presidential power that exposes the nation to further constitutional peril.
It doesn’t matter that the legal merits of this particular national emergency will be challenged in court.
The damage has already been done.
As reporter Danny Cevallos points out, “President Donald Trump only had to say ‘national emergency’ to dramatically increase his executive and legal authority. By simply uttering those words … Trump immediately unleashed dozens of statutory powers available to a president only during a state of emergency. The power of the nation’s chief executive to declare such an emergency knows few strictures — it was designed that way.”
We have now entered into a strange twilight zone where ego trumps justice, propaganda perverts truth, and imperial presidents—empowered to indulge their authoritarian tendencies by legalistic courts, corrupt legislatures and a disinterested, distracted populace—rule by fiat rather than by the rule of law.
This attempt by Trump to rule by fiat merely plays into the hands of those who would distort the government’s system of checks and balances and its constitutional separation of powers beyond all recognition.
This is about unadulterated power in the hands of the Executive Branch.
This is about corporate greed disguised as a national need.
Most of all, however, this is about the rise of an “emergency state” that justifies all manner of government tyranny and power grabs in the so-called name of national security.
This is exactly the kind of concentrated, absolute power the founders attempted to guard against by establishing a system of checks of balances that separates and shares power between three co-equal branches: the executive, the legislative and the judiciary.
“The system of checks and balances that the Framers envisioned now lacks effective checks and is no longer in balance,” concludes law professor William P. Marshall. “The implications of this are serious. The Framers designed a system of separation of powers to combat government excess and abuse and to curb incompetence. They also believed that, in the absence of an effective separation-of-powers structure, such ills would inevitably follow. Unfortunately, however, power once taken is not easily surrendered.”
The Constitution invests the President with very specific, limited powers: to serve as Commander in Chief of the military, grant pardons, make treaties (with the approval of Congress), appoint ambassadors and federal judges (again with Congress’ blessing), and veto legislation.
In recent years, however, American presidents have anointed themselves with the power to wage war, unilaterally kill Americans, torture prisoners, strip citizens of their rights, arrest and detain citizens indefinitely, carry out warrantless spying on Americans, and erect their own secretive, shadow government.
The powers amassed by each past president and inherited by each successive president—powers which add up to a toolbox of terror for an imperial ruler—empower whomever occupies the Oval Office to act as a dictator, above the law and beyond any real accountability.
Consider some of the presidential powers—which have been acquired through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements and can be activated by any sitting president—that have allowed past presidents to operate above the law and beyond the reach of the Constitution.
The power to kill. As the New York Times concluded, “President Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability.” Obama’s kill lists—signature drone strikes handpicked by the president—have been justified by the Justice Department as lawful because they are subject to internal deliberations by the executive branch. “In other words,” writes Amy Davidson for the New Yorker, “it’s due process if the President thinks about it.”
The power to wage war. Ever since Congress granted George W. Bush the authorization to use military force in the wake of 9/11, the United States has been in a state of endless war without Congress ever having declared one. Having pledged to end Bush’s wars, Barack Obama extended them.
The power to torture. Despite the fact that the Bush Administration’s use of waterboarding as a torture tactic was soundly criticized by Obama, the Obama Administration refused to hold anyone accountable for participating in the rendition and torture programs. In the absence of any finding of criminality, the authorization of such torture tactics remain part of the president’s domain—should he or she ever choose to revive it.
The power to spy on American citizens. In the wake of the 9/11 terror attacks, President Bush secretly authorized the National Security Agency to carry out surveillance on Americans’ phone calls and emails. The Bush Administration claimed that the Constitution gives the president inherent powers to protect national security. The covert surveillance continued under Obama and is full force under Trump.
The power to indefinitely detain American citizens. In 1942, President Franklin D. Roosevelt issued an executive order requiring that all Japanese-Americans be held in internment camps. While that order was later rescinded, the U.S. Supreme Court declared it to be constitutional. The ruling has never been overturned. Pointing out that such blatantly illegal detentions could happen again—with the blessing of the courts—Justice Scalia warned, “In times of war, the laws fall silent.” In fact, each National Defense Authorization Act enacted since 2012 has included a provision that permits the military to detain individuals—including Americans citizens—indefinitely without trial.
The power to strip American citizens of their constitutional rights. The Bush Administration claimed it could strip American citizens of their constitutional rights, imprison them indefinitely, and deny them legal representation simply by labeling them as enemy combatants. While the Obama Administration jettisoned the use of the term “enemy combatant,” it persisted in defending the president’s unilateral and global right to detain anyone suspected of supporting terrorist activities.
The power to secretly rewrite or sidestep the laws of the country. Secret courts, secret orders, and secret budgets have become standard operating procedure for presidential administrations in recent years. A good case in point is Presidential Policy Directive 20, a secret order signed by President Obama as a means of thwarting cyberattacks. Based on what little information was leaked to the press about the clandestine directive, it appears that the president essentially put the military in charge of warding off a possible cyberattack.
The power to transform the police into extensions of the military and indirectly institute martial law.What began in the 1960s as a war on drugs transitioned into an all-out campaign to transform America’s police forces into extensions of the military. Every successive president since Nixon has added to the police’s arsenal, tactics and authority. In fact, the Trump Administration has accelerated police militarizationby distributing military weapons and equipment to police and incentivizing SWAT team raids and heavy-handed police tactics through the use of federal grants and asset forfeiture schemes.